People v. Davis

56 A.D.2d 892, 392 N.Y.S.2d 489, 1977 N.Y. App. Div. LEXIS 11287

Opinion

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered June 28, 1974, convicting him of robbery in the first degree (two counts), attempted assault in the first degree and possession of a weapon, etc., as a felony, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by (1) vacating the sentence imposed upon the second count (the third count of the indictment) of robbery in the first degree charged in the superseding indictment (Indictment No. 4432-72) and (2) reversing the conviction of possession of a weapon, etc., as a felony, and the sentence imposed thereon, and the count upon which such conviction is based (attempted murder) is dismissed. As so modified, judgment affirmed. As the People concede, the defendant was sentenced on two counts of robbery in the first degree although the jury did not find him guilty of the second robbery count charged in the superseding indictment (the third count thereof). The conviction of possession of a weapon has been dismissed as an inclusory concurrent count of attempted assault in the first degree (see People v Grier, 37 NY2d 847). We have considered the other contentions advanced by defendant and find them to he without merit. Hopkins, Acting P. J., Latham, Damiani and Hawkins, JJ., concur.